There’s an old saying that goes “when it rains, can’t fix the roof; when it don’t rain, the roof don’t need fixin.’” That rather sums up most efforts at government reform. When you’re out of power, you can’t really do anything about it. When you’re in power, it turns out things don’t really need fixing. So no shocker that Joe Barton (R-TX), ranking member of the House Energy and Commerce Committee, joined by Mr. Cliff Stearns (R-FL), ranking member of the Telecom Subcommittee, have decided to introduce an FCC reform bill now that (a) Democrats control Congress, and (b) Democrats control the FCC. You can find the press release here and the full bill text here.

If political expediency were a mortal sin, however, nothing would ever get done. So it is not enough to simply note that politicians of either party are more apt to want reform when they are on the outside. It is important to examine the bill in its own right. Given that a lot of folks in both parties and in the public interest community would like to see some longstanding issues corrected, and I have opined on the matter myself from time to time, it’s important to consider whether the Barton-Stearns bill makes a good start and a basis for going forward. Remember, we want functional government. If out of power Rs are now in the mood to address real issues and get substantive stuff done, the thing to do is make it easy for them to work together with Ds. Perhaps it will become a habit. OTOH, as Ds have learned over the last several month, agreement for the sake of agreement is not worth doing.

My personal feeling after a quick read is that this bill is not a bad place to start on some long-standing procedural gripes, but that there are a couple of things that worry me.

OK, color me cynical, but I find this recent bipartisan interest in the fairness of FCC processes a source of some considerable eye rolling on my part. Not because the issue isn’t timely, important, etc., etc. But because it wasn’t until the cable industry started bleating their little heads off that this amazing bipartisan consensus suddenly emerged.

For some background here, I wrote my first major paper on how badly the FCC processes suck rocks back in 2003. I and my employer, Media Access Project, have complained about the crappy way the FCC behaves going back to when the Democrats ran the show and the Media Bureau routinely issued “letter opinions” and developed “street law” that eventually became binding agency precedent. The whole business of how stations could circumvent the ownership limits by engaging in local marketing agreements (LMAs) and joint sales agreements (JSAs) which sold everything but the actual license was bitterly fought by MAP and goes back to the Bush I administration. And yes, I fully agree with the recent GAO Report about how FCC processes favor industry over the public because the long-standing relationships between FCC staff (including career staff well below the Commissioner level) and industry become back channels for critical information and influence.

But it sticks in my craw no end to see Republicans come alive to this issue for the first time because it bit the cable industry on the rear end instead of sticking it to the public interest community.

Nor am I overly thrilled with my friends and colleagues in the movement who seem to believe that Martin invented this mess. Certainly Martin has used every procedural device and negotiating tactic available to him. He is, as I have observed on more than one occasion, a hard-ball player. And his hrdball negotiating tactics — a huge list of agenda items, last minute negotiations, everything Adelstein complained about in his concurrence at te last meeting — have clearly generated ill-will and suspicion among his fellow Commissioners.

But when I think about all the crap that Powell pulled as Chairman with nary an eyebrow raised and compare it to the conduct of this FCC, I could just weep. Martin met with us in the Public Interest Spectrum Coalition (PISC) on multiple occasions when Senate Democrats wouldn’t even invite us to testify. And I still remember back in 2003 during the Comcast acquisition of AT&T Broadband that it was Martin who insisted that Powell issue a written denial of our motion to get access to certain agreements so that we would have a basis for appeal.

So while I normally am in full agreement with my friends at Free Press, I must vehemently dissent from their apparent insistence that Martin has debased the FCC’s processes to new depths. Martin’s FCC is such an improvement over the pro-industry/anti-public interest/don’t bother us because we pre-decided it cesspit that was the Powell FCC that these allegations can arise only because Free Press did not exist when Powell was running the first dereg show. As George Will noted, Michael Powell met a total of twice with public interest groups (once with my boss, Andy Schwartzman, and once with Consumers Union’s Gene Kimmelman) and conducted exactly one public hearing outside of DC before issuing his ownership order — in far off Richmond Virginia.

And as for the recent Tribune merger — please! I certainly disagreed with the result, but Martin has nothing on Powell’s former Media Bureau Chief Ken Ferree. Ferree twisted FCC law and process like a pretzel to give Tribune a waiver extension it didn’t deserve. This is the same Ken Ferree, btw, who informed the public interest community that the FCC would hold no public hearings on media ownership because the FCC didn’t need “foot stomping” to make a decision. Indeed, the list of the sins of Ken Ferree — whose arrogant disregard for process remains unsurpassed in the annals of the FCC — could fill several more pages of blog postings.

And while all this crap was going on, we had nary a peep from the Republicans in Congress. But as soon as Martin made it clear he intended to actually enforce the existing law against the cable industry, SUDDENLY Congressional Republicans woke up to due process issues and beagn to fret about “abuses of power” and Martin being “out of control.”

I can forgive my colleagues in the movement who weren’t around the first time. And I understand the Congressional Democrats, who were either out of power when Powell was running the show or simply not yet arrived on the scene. Certainly Markey and other Congressional Democrats were equally loud in their complaints about process when Powell sprang a spanking new “diversity index” on the public with no warning as they have been n recent weeks against Martin — but being in the minority their protests amounted to little. But when I hear Republicans like Barton and Upton, who positively applauded sticking it to the public time and again, rush to the defense of the poor beleaguered cable industry on process grounds, I have to say something. Even for the self-serving cynicism and hypocrisy that passes for principles in the Republican party these days, this is just too much.

I certainly hope the concerns of Mr. Boehner, Mr. Sunnunnu, and the other Republicans that have suddenly become obsessed with process persist after their master in the cable industry get what they want.

In part I, I wrote about Martin’s carefull PR blitz to frame the 700 MHz endgame. But its important to look at the substance of Martin’s draft order itself. Because, as always, Martin is damn clever, and has put stuff in there that is bloody tempting to go for the compromise. To keep this manageable, I will limit my discussion here to just assessing the rumored offer and how I think we could improve it, keeping in mind that this is just press reports and really doesn’t cover the panoply of issues. In Part III, I will provide my Field Guide for the Endgame, reminiscent of my original Impossibly Long Field Guide from April (how much things have changed in 3 months).

So recently, with all the spectrum stuff going on, I hear a lot of people asking about something called “M2Z,” usually like this: “So, what the heck is M2Z? And why should I care?”

Two very good questions. Briefly, M2Z is yet-another-plan to solve our national broadband woes through exclusive licensing. Specifically, it is about giving this one company a free, exclusive, national license for the 20 MHz of spectrum left over from the federal spectrum cleared for last summer’s AWS auction. While M2Z filed its application in May ’06, it took the FCC awhile to figure out what to do with it, since it doesn’t have any rules or pending proceedings that cover what M2Z wants. Finally, back in February ’07, the FCC issued a generic public notice of the application as required under the Communications Act and asked for piublic comment on what the heck to do about it.

Given my rather low opinion of Cyren Call’s efforts to get a free, national license, one might expect me to take a similar dim view of M2Z. Nor has M2Z helped its case much with some rather ham-handed “outreach” to the public interest community, by spamming the attendee list of the National Conference on Media Reform and creating a “Coalition for Free Broadband” website that looks all the world like an off-the-shelf Astroturf project.

Despite all this, I still think that M2Z deserves support. My employer Media Access Project filed a letter in support of M2Z. At the least, it deserves a good hard look before writing it off as yet another theft of spectrum via privatization.

Sometime right soon, Dr. Gregory Rose, he of the brilliant fisking of the spectrum auction scam, will be making his inaugural post at his new Wetmachine blog Econoklastic. So may I be the first to welcome him: Welcome, Greg! Welcome to Wetmachine! I have no idea what he’ll write about, but his background leads me to expect good things. Greg describes himself thusly:

I’ve been an academic economist for more than 20 years. My
dissertation was on developing mathematical techniques for aggregating
affective variables in utility functions. I left OSU Tulsa to come to
DC in 2004 to set up a consulting company. I’ve been doing consulting
for the public interest community on telecoms ever since. And I’m a
very unconventional economist: I’m probably the only socialist member
of the Public Choice Society.

Adding another name to the Wetmachine masthead seems as good an occasion as any to launch into some meditative malarky I’ve been cogitating on for some while about where Wetmachine came from, has been, and is tending. Especially since the one-two combination punch of Harold Feld and Greg Rose should pretty much establish Wetmachine as a premiere telecommunication/first amendment/innaleckshul property policy wonk “destination shopping” blog. Which is kind of cool, especially since it’s nothing like what I set out to create when I launched Wetmachine seven years ago. At that time I was mostly trying to pimp my books (still am), and I also was pretty irritated by the technological utopianism of blogs like Slashdot and Boing Boing & I wanted to do something in the same basic zip code as those blogs but much more curmudgeonly and technoskeptical. Sort of a blend of Slashdot and Boing Boing on a bad acid trip by way of the Unabomber Manifesto was what I had in mind. I also imagined that that the now-atrophied Bonehead Computer Museum would evolve into the central attraction of the site. Guess I missed that guess. I had no idea when I invited Harold Feld to blog with me that I was snagging a world-class policy expert with a major talent for snark, nor did I know that Howard Stearns would emerge up to his eyeballs in Croquet at the head of the Web 3.0 movement. Much to my astonishment, and with little help from me, Wetmachine has become of blog of substance (by some definition of “substance”.) Who woulda thunk it? Any of y’all as may be interested in some more of my navel-gazing, feel free to follow me below the fold.

There are many ways to parse the fights in the 700 MHz auction: incumbents v. new entrants, rural v. large incumbents, public safety v. commercial use, and the occassional suggestion by us in the public interest community. But, as I recently indicated elsewhere, an analysis of the band plan fight about large licenses v. small licenses reveals another interesting battle: Telcos v. Cable, with new entrants lining up with Telcos for large licenses and non-vertically integrated wireless carriers like T-Mobile aligning themselves with the cable-dominated consortium SpectrumCo.

What makes me believe license size in 700 MHz auction has become a new front in the fight between telcos and cable cable cos? Why has this new battleground emerged? And what are its implications?

Throughout the public interest community, one can find much wailing an gnashing of teeth over today’s Commerce Committee mark up of the Communications Opportunity Enhancement Act of 2006 (COPE). “A Bad Day for Media Democracy” reads the headline at Save Access.

Well, I’m not happy with COPE so far, but I think it turned into a good day for democracy, with better days to come. Because if you thought today was grim, you weren’t here for the absolute spanking net neutrality got in subcommittee in the beginning of April. In the week since the SavetheInternet campaign got underway, four democrats switched their votes on Net Neutrality from “anti” to “pro.” The day before mark up, the Republican chair of the House Subcommittee on Antitrust in the Judiciary Committee and their new task force on telecom declared all out war against the Commerce Committee effort to eliminate a free and open internet. The telcos, who earlier this month boasted they could get the bill past both houses and signed into law before the election recess, don’t sound nearly as confident despite today’s win.

What changed? Until the Subcommittee Spanking, folks let the tech companies do the heavy lifting and fought by the standard lobbying play book. Hill meetings, inside the beltway briefings, insider baseball, blah blah blah. Google v. Verizon, people said, and tuned out. And while the tech lobbyist worked with us public interest folks, one could not help but detect a certain — how shall I put it? — condescension and cluelessness as to how this “public interest” stuff really works. It kinda felt like posing for photo ops, while the “real” decisions about spending money on messaging and what strategies to persue and the ever-important smoke filled room meetings never involved anything as messy as the public.

And, as usual, the tech folks got spanked. Spanked real good. The kinda spanking you usually have to pay good money for if you fancy that kind of thing. Because despite having more money than the telcos and cable cos combined, the tech cos can never win using telco and cable co rules. Because the telcos and cable cos wrote the goddam rules and have played this game by this rulebook for a longer than most tech CEOs have been alive. As a result, the telcos and cable cos are very, very good at it. Meanwhile, as my friend and fellow traveller Jeff Chester at CDD observed the tech companies still can’t figure out how to play this game, or what they want to get out of it if they could figure it out. Or maybe they just like getting spanked, and miss the days when the intellectual property mafia would toast their little bottoms for them with legislation like the Digital Millenium Copyright Act.

So, while still working with the tech lobbyists etc., the folks in the public interest community finally said “Screw this. You guys may be into getting spanked, but we prefer winning. And the way you win in democracy is by busting open the process, getting people to see what’s at stake, and reminding elected officials that their job is to do what’s best for their constituents not to referee industry food fights.” And thus, through the work of Free Press, Common Cause, Moveon and a host of others, was the SavetheInternet campaign born. And when the mainstream media refused to cover the story as too technical or boring or against the interest of their parent mega-companies, 500 bloggers took up the cry. And all this free speech stuff, that the telcos and the cable cos and the memebrs of Congress ignored because it doesn’t have a trade group and you can’t quantify it in dollar terms, really worked. And more and more people are writing letters and calling members and reminding them that there’s an election this fall.

There’s a lesson here; one backed up by the utter triumph of the pro-munibroadband forces against proposed amendments to outlaw munibroadband, or even to grandfather existing state-level bans. YOU CAN’T OUTSOURCE CITIZENSHIP. You can’t let “the tech companies” or even “the consumer advocates” or anyone speak for you. Citizenship carries responsibilities that go beyond the ritual of voting every two years. But when citizens wake up and speak up, and speak to each other, they find — to their surprise — they are strong. They find they have power. And they find that being a citizen may take hard work, but it is so, so, SO much better and more satisfying than being a couch potato. As the great Jewish sage Hillel said: “If I am not for myself, who will be for me? If I am only for myself, who am I? If not me then who? If not now, when?”

Don’t get me wrong. I’m glad the tech companies are on our side. They have a lot to offer, lots of resources, and, if they decide they are tired of of playing by the old rules and getting spanked, can really help push this effort over the top. But if we as citizens let this degenerate to a fight with Google, Microsoft and Silicon Valley venture capitalists who like tech start ups on one side v. AT&T, Comcast and Wall Street analysts who like monopolies on the other, with Congress brokering a deal between the two, then we citizens lose no matter which side wins. We can, we must, speak for ourselves.

When Ben Franklin left the Constitutional Convention someone shouted to him from the crowd “Mr. Franklin, what have you given us?” He answered “A republic — IF YOU CAN KEEP IT.” The Sausage Factory of democracy is a messy business, but it’s worth it. We can either let other folks make the sausage and eat whatever shit they put in, or we can wade in and make sure it comes out alright. We lost today’s battle. But we are turning the tide in the war. And if we keep growing and going like we have in the last week, we will win.

Last Friday, December 9, marked the departure of Republican Commissioner Kathleen Abernathy. The FCC therefore briefly drops to a 2-1 Democratic majority. But the Senate should confirm Deborah Tate, a Republican Public Utilities Commissioner (and neighbor of Senate Majority Leader Bill Frist) before it adjorns, bringing the FCC back to 2-2.

A few reflections on Abernathy and some thoughts about the likely new Commission below.

Comcast has withdrawn its offer for Disney. Much as I’d like to claim this as a kill for the public interest community as some of my colleagues have, I think that was only part of the calculus. But don’t worry all you big media fans, because with Adelphia on the chopping block and MGM being courted, we can count on the media feeding frenzy to continue.